Appellant appealed against dismissal of divorce suit alleging adultery and cruelty under Hindu Marriage Act. High Court examined evidence and found lack of cogent proof of serious allegations. Appeal dismissed upholding Family Court findings that marriage cannot be dissolved absent necessary proof.
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Appeal from Original Decree No. 69 of 2015
(Against the judgment and decree dated 16.01.2015 and 29.01.2015 respectively passed by the learned Principal Judge, Family Court, Chatra in Matrimonial Suit No. 19 of 2008)
-- Bablu Soni .....Appellant Versus
For the Appellant: Mr. Sudhir Kumar Sharma, Advocate For the Respondents : None
CORAM:HON'BLE MR. JUSTICE APARESH KUMAR SINGH HON'BLE MR. JUSTICE RATNAKER BHENGRA
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By Court : Heard learned counsel for the appellant. Learned counsel Ms. Asmita Shrivastava submits that the respondent has taken no objection from her office two years back. No one else has entered appearance on behalf of the respondent. On the earlier date also no body appeared on behalf of the respondent and the matter was adjourned. Before the learned Mediator, JHALSA also, parties did not appear and mediation could not take off.
2. The present appellant is the husband, aggrieved by the dismissal of Matrimonial Suit No. 19 of 2008 by the judgment dated 16.1.2015, decree dated 29.1.2015 passed by learned Principal Judge, Family Court, Chatra, whereunder his prayer for dissolution of marriage on grounds of adultery and cruelty, in terms of section 13(1)(i) (i-a) of the Hindu Marriage Act, has been rejected.
3. Appellant, inter alia, pleaded before the learned Family Court as under:
Parties solemnized their marriage on 23.6.2004 as per Hindu rites and customs at Rajrappa Temple. They spent peaceful conjugal life for some time in the matrimonial house but after six months, one Sunil Kumar Mehta, who was impleaded as Opposite No. 2, started visiting his house. Thereafter, respondent started disliking the petitioner and his family culture and used to disturb the peace of the family. She refused to perform the daily chores of family life. Once, she left the house in midnight and returned in the morning. At times, she used to go to her parental house without
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consent of the petitioner or her in-laws. Once, he went to his in-laws house and found the respondent with Sunil Mehta confined in a room. However, she came with him. On 16.5.2006, she mixed poison with rice to feed her father-in-law, however, due to bad smell, he did not take the meal. A dog was given the meal, who died after eating the meal. A Sanha was lodged in the court of SDM, Chatra 30.11.2005 bearing no. 290 of 2005. Thereafter his parents left to stay in a separate residence. Thereafter petitioner shifted to village –Dahuri along with respondent and started running a goldsmith shop. There also, she established illicit relationship with several persons of the village, who used to visit his house without any reason. O.P. 2 also started visiting her and used to spent time. When he objected, the opposite party threatened to kill him. He again planned to go to his village Untta but she did not like it and fled away in the midnight on 2.10.2006. Petitioner returned to his village- Untta and started running a separate shop. He went to bring her back on 4.10.2008, but she refused to return and resume conjugal life. She threatened to kill him.
Respondent-wife through her written statement accepted the factum of marriage, but denied all the allegations as being false. She alleged demand of dowry being the reason for her being ousted from her in-laws house. She had filed a case under Dowry Prohibition Act in Hazaribagh court which was compromised on the undertaking of the husband to keep her properly. However, the torture resumed again. Respondent alleged that the petitioner wanted to enter into second marriage as he was in love with daughter of Murari Sonar. She conveyed her intention to live with him.
5. Based on the rival pleading of the parties, the following issues were framed on re-cast, for adjudication:
6. Learned Family Court took up the issue no. iii first and discussed the evidence of the parties. Petitioner adduced six witnesses, namely, P.W.1, petitioner himself, P.W.2 Sakina Khatoon, whose house was said to be opposite the house of the petitioner, P.W. 3 Liyaqat Mian, P.W. 4, Kailash Sonar, P.W. 5 Petitioner’s father Dhaneshwar Pd. Soni and P.W. 6 Bodh Narayan Prasad. Respondent examined three witnesses, D.W. 1
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respondent herself, D.W. 2 Ashok Sao, who was her uncle and D.W. 3 her brother. Learned Family Court on appreciation of the material evidence on record in the light of the pleadings of the parties, found that the petitioner had completely failed to prove the allegations of adultery and cruelty against the respondent. Learned Family Court observed that P.W. 1 petitioner, at para 24 of his cross examination admitted that prior to the instant suit,his wife had filed a case in Hazaribagh court under Dowry Prohibition Act, which ended in a compromise. He had undertaken to keep his wife properly. At para 32 of his cross examination, he clearly stated that he had not seen his wife with any person in compromising position or having established illicit relationship with any person. At para 38, he stated that he had informed the matter of poisoning to the court, but contrary to that his father P.W. 5 had stated at para 20 that prior to this case, a Sanha was lodged at Sadar Police Station with the allegation that the girl had fled away. At para 26, he deposed that he was unable to say on which date the poison was given to him. Besides that, petitioner had not filed any chit of paper in respect of the information or Sanha alleged to be lodged by them. P.W. 5, his father, had also admitted that the case was compromised, one month earlier of filing of the suit. Learned family court, drew inference that the criminal case was compromised by the petitioner with an intention to seek divorce from her later on. That is why, the instant suit was filed only one month thereafter. Further, none of the petitioner’s witnesses have stated having seen any act of adultery or illicit relationship of the respondent with any other person. Learned court was of the opinion that a charge of adultery is very serious and cannot be accepted on formal evidence alone. Further cruelty in marriage implies a harsh conduct of such intensity and persistence which makes it impossible for the spouse to live with the respondent. Each case, however, has to be determined on the facts and circumstance therein. There is no straight jacket formula, on which the allegations of cruelty can be established. Such allegations cannot be easily inferred from averments made in the pleadings. There should be cogent material evidence to constitute legal proof. Respondent, in her written statement as well as in her evidence had clearly stated that she is ready to live with the petitioner. Her brother, D.W. 3 had also stated like that. In such circumstances, petitioner had failed to establish the allegations of adultery and cruel behaviour of the respondent by any cogent and conclusive proof. As such, the marriage could not be dissolved in absence of necessary ingredients of such charge being established during
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trial. Accordingly, issue no. iii was answered against the petitioner and in favour of the respondent. Based on the aforesaid finding, the other issues were also decided against the petitioner.
7. Learned counsel for the appellant had made strenuous efforts to question the finding of learned family court on both counts. He has placed the evidence of the parties and submitted that all the P.Ws have consistently deposed that respondent was having illicit relationship with the O.P. 2 , who often used to visit the house of the petitioner. As per the case of P.W. 1, even after he shifted to the village- Dahuri, several persons used to visit his house for no reason, apart from the O.P.2. It has also come in the evidence that on being objected, she threatened to kill him. There were independent witnesses like P.W. 2, a neighbor, P.W. 3 also a person unrelated to the family and P.W. 6 as well. These persons have supported the case of the appellant during trial. The father of the petitioner P.W. 5 has also stated that he separated from the petitioner and his family after an incidence of poisoning. He has also alleged illicit relationship of the respondent with Sunil Mehta, who used to visit his house after six months of marriage. The petitioner’s witnesses have also consistently deposed about the ill behavior of the respondent towards the petitioner. Incidences of poisoning, threat to kill him etc., taken together with statement of other witnesses, are enough to establish the allegations of cruelty in marriage. Moreover, the respondent has been living separately since 04.10.2008. The marriage between the parties has almost reached to a dead end. There are no emotional bonds alive between the parties. Maintaining such a relationship would only be doing lip service to the Institution of Marriage. Parties definitely are not going to reunite, even if the appeal is dismissed. As such there is an irretrievable breakdown of the marriage. The findings of the learned court also are not well considered and therefore, deserve to be interfered with by this Court.
8. We have considered the submission of the learned counsel for the appellant; gone through the impugned judgment and also the relevant material evidence on record, relied upon by the learned counsel for the appellant and as discussed by the learned family court. We find from the narrative of the pleadings and evidence on record described above that apart from the statements made by the petitioner in his plaint and oral testimony of the witnesses, there are no cogent evidence on record to establish a serious allegation of adultery against the respondent-wife. The petitioner P.W. 1 has clearly stated at para 32 that he had not seen any
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illicit relationship with any person of his wife. He has not seen his wife in a compromising position with the O.P. 2 or anyone else. P.W. 2 to 6 have also not stated having seen the respondent in any compromising position or explicit illicit behavior with O.P. 2 or any other person. From appraisal of the evidence of P.W. 2, it is clear that she had no personal knowledge of the allegations made against the respondent. She was a neighbor of the house of the petitioner. At para 12, she had stated that she was unable to say with whom the illicit relationship of the respondent had developed. She had not seen the occurrence of the respondent mixing poison. She was not in a position to say as to when respondent left her in-laws house. She knew about the criminal case lodged by her against her in-laws through the petitioner. The statements of P.W. 3 were also formal in nature. P.W. 4, though generally supported the case of the petitioner, but he stated that he had disclosed the name of Sunil Kumar Mehta at the instance of the petitioner. He was unable to say when the respondent left her in-laws house. The allegation of poisoning narrated by him were hear say. P.W. 5 father of the petitioner had also stated at para 22 of his deposition that Sunil Mehta was not known to him. He further stated that O.P. 2 had filed a case against his son about two years ago. Though he stated at para 25 that he had seen phone calls coming to the mobile of the respondent but he had neither seen the mobile nor he knew the numbers of that mobile. He was unable to say the date and day of poisoning. P.W. 6, in his cross examination, stated that his house was situated about 47 k.ms. distance from village Untta. He further stated that in Chatra court there were two cases pending against him and in four-five cases, he was acquitted. He had also not seen the act of poisoning. He was aware about the criminal case filed by the petitioner. Learned family court found his evidence contradictory from the other witnesses. On the other hand, D.W.1 the respondent in her statement accepted the factum of marriage and also stated about giving of cash, ornaments, T.V., Motorbike and utensils etc. at the time of marriage. She also alleged demand of dowry of Rs. 50,000/-, on nonfulfillment of which she was tortured. Petitioner used to threaten to solemnize second marriage due to which she had been compelled to file a case under Dowry Prohibition Act in Hazaribagh Court. She also stated that a compromise was arrived at by way of a conspiracy and when she went back to her in-laws house, she was again tortured and ousted. During pendency of this suit, petitioner had solemnized second marriage with one Pinki Devi, daughter of Awadh Soni. Other D.Ws also supported the case of
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the respondent.
9. We have referred to the evidence of the parties in detail but we are unable to find any such cogent corroborative material evidence on record which could establish a serious allegation of adultery and cruelty in marriage against the respondent. Allegations of adultery in fact, have been casually made as none of the witnesses has stated having seen the respondent in any compromising position with the O.P. No. 2 or any other person. The instances of cruelty also stands disproved, as the only material document referred to as evidence of attempt to poison i.e. Sanha by the respondent have also not been brought on record by the petitioner. There are contradictory evidence on the Sanha in the statement of the petitioner P.W. 1 and his father P.W. 6, as noted above.
10. In totality of facts and circumstances and for the reasons discussed herein above, we do not find any grounds to disturb the findings of learned family court. The appeal is without merit and it is accordingly dismissed. Decree accordingly.
(Aparesh Kumar Singh,J)
(Ratnaker Bhengra,J)
Jharkhand High Court, Ranchi Dated 12th July, 2018 Sharda/SB/ NAFR
2 issues framed by the court
Whether the appellant has established adultery and cruelty sufficient grounds for divorce under section 13(1)(i) and 13(1)(i-a) of the Hindu Marriage Act.
Whether the findings of the Family Court regarding the failure to prove adultery and cruelty warrant interference on appeal.
1 provisions across 1 enactments
Bablu Soni
Soni Devi
Sunil Kumar Mehta
Apareesh Kumar Singh
Ratnaker Bhengra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court